Law and Justice

“I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.”

In February 1942, in the wake of the Japanese attack on Pearl Harbor, President Franklin Roosevelt signed Executive Order 9066 authorizing the U.S. government to forcibly remove the entire Japanese-American population of the west coast. Within months 110,000 men, women and children were moved to concentration camps in the interior of the country, including Idaho the state I called home for more than 40 years. History records this unconstitutional treatment of thousands of people, the vast majority of them American citizens, as one of the worst violations of civil liberties in our history.

Idaho Governor Chase Clark

Driven by fear, racial prejudice, national security hysteria and even economic considerations, then-Idaho Governor Chase Clark, a Democrat, and most every other political leader in the country willingly embraced the politically popular notion that citizens of Japanese ancestry represented a security threat. They “act like rats,” Clark said in a scathing indictment of all of Japanese ancestry. If they where to be brought to Idaho, Clark maintained, they must be kept under military guard in “concentration camps.” A better solution to the “Jap Problem” was to “send them all back to Japan, then sink the island.”

In 1988 President Ronald Reagan signed the Civil Liberties Act authorizing modest compensation for the Japanese-American citizens incarcerated by their own government a half-century earlier. Reagan remarked that the government’s “action was taken without trial, without jury. It was based solely on race.”

The Minidoka camp in south central Idaho

Now, history repeats with a new dark chapter.

Seventy-five year after Roosevelt’s grievous violation of civil liberties another American president is using an un-American standard – religion – to discriminate and persecute American citizens, foreign citizens legally in the United States and desperate refugees, primarily women and children, seeking to flee mayhem in Syria and elsewhere.

As with the events of 1942, Donald Trump’s recent sweeping Executive Order is driven by fear, misinformation about threats to national security and apparently by a misguided belief that all Muslims, even those who have put their own lives at risk to add American military efforts in the Middle East, present a danger.

So far the response of Idaho elected officials to the arguably unconstitutional Executive Order has been faint-hearted acquiesce. This capitulation to fear and bigotry, particularly given Idaho’s troubled history of racial and religious discrimination, including battles against the Aryan Nations and anti-Mormon bigotry, deserves the strongest possible condemnation. This is an Idaho fight.

Top White House political advisor Stephen Bannon, former Breitbart CEO

Racial and religious intolerance has been stoked recently in south central Idaho by the alt-right website Breitbart, not coincidentally the same region where thousands of Japanese-Americans were incarcerated 75 years ago. Major political leaders have been silent, while Breitbart’s former CEO, Stephen Bannon, becomes the top political strategist to the president with a seat on the National Security Council. Breitbart’s immigration policy is now America’s.

As the late Dr. Bob Sims, a Boise State University historian of the Japanese-American internment, wrote of Governor Clark’s position in the 1940s, that it “may have seemed fearless and patriotic, but in retrospect it appears to have been nothing more, or less, than a combination of xenophobia and racism.” Sims acknowledged that Clark, who later become a respected federal judge, deserved to be remembered for the totality of his career, but also for “his shortcomings in World War II, for they were not his alone but America’s.”

Protesters at Seattle’s airport over the weekend

In the life of every politician there comes a moment when moral reality presents a stark choice between principle and party, between what is momentarily popular and what is consistent with American values. This is such a moment and the timid, spineless response from Idaho leaders is truly reprehensible.

If you oppose the president’s action as an un-American, unconstitutional religious test targeting one vulnerable group then adopt the all-American response – oppose it, loudly and consistently.

And a footnote: Franklin Roosevelt’s infamous Executive Order 9066 never mentioned Japanese-Americans, but the order was clearly directed at that population. The Trump Administration says its order is “not a Muslim ban.” History does repeat.

If you haven’t seen the Oscar-nominated film Selma you should. While mostly snubbed by those who decide which of Hollywood’s features are deemed worthy of acclaim, the film is worthy of much acclaim, and is a stunning and passionate look at recent American history. Given the country’s continuing struggle to reconcile its aspirations regarding equality with its history of racism and hatred, Selma presents a part of our history that must be remembered and understood, celebrated and mourned.

Like all films that set out to depict real events Selma has historical problems. More on that in a minute. Yet even with these not insignificant problems, the portrayal of events leading up to the historic voting rights march from Selma to Montgomery, Alabama early in 1965, even when we know the outcome, makes for gripping viewing. Because of the realism displayed in the film to illustrate the hatred and gut wrenching violence deployed against peaceful protestors Selma is also at times difficult to watch.

Director Ava Duvernay was correct, I think, to put Dr. Martin Luther King, Jr. at the center of her important film. History tells us, of course, that as important as King’s role was in leading his Southern Christian Leadership Conference in a series of protests across the American South in the 1960’s, many, many others played key roles in advancing the cause of civil rights. Still it is impossible not to come away from Selma viewing King as a great and transcendent moral force, indeed a genuine American hero. Thanks to the multi-dimensional character that British actor David Oyelowo develops on the big screen, King becomes as vital for us as he became for his followers in those hard times a half century ago. It is difficult to understand how Oyelowo was passed over for a Best Actor nomination. He deserves it.

I wondered as I watched the brutal scenes where peaceful African-American protestors are set upon by nightstick and horse whip armed Alabama state troopers wearing gas masks, if a whole new generation of Americans might come to understand, thanks to Selma, the unbelievable courage and determination shown by Americans who were merely seeking the right to vote. History fifty years old might as well be ancient history for many Americans and seeing the brutality and the blood in color on the big screen cannot help but underscore the reality of racism and hatred better than the old grainy black and white television film most of us have seen in documentaries.

Selma is a stunning reminder of where we came from, how far we have come and, unfortunately, how very far we still must go. Go see it and take someone under 35 years old with you.

The History…

I admit to being initially put off by the lack of political nuance in the film, not to mention the portrayal of Lyndon Johnson, but after reading and digesting much of the criticism and praise of Selma I find myself in agreement with Darryl Pinckney who wrote in the New York Review of Books: “A film based on a historical subject, even a beautifully shot one, can remind us without meaning to that although reading in the US is a minority activity, the book is still the only medium in which you can make a complicated argument.”

Perhaps it’s naïve on my part, but I harbor hope that the controversy about the movie, particularly the treatment of Johnson and the virtual absence of acknowledgement of the role congressional and presidential politics played in passage of the Voting Rights Act, will stimulate a greater understanding of the confluence of hatred, protest, violence, politics, bipartisanship, racism and religion that marked the eventual passage of the landmark legislation fifty years ago.

Every film, I guess, needs a villain and Selma has several. I would be personally more comfortable if the filmmakers had cast J. Edgar Hoover, the long-time and truly despicable director of the FBI, as an even greater villain. Hoover deserves that treatment more than Johnson for, as LBJ’s one-time press secretary Bill Moyers has noted, “There’s one egregious and outrageous portrayal [in the film] that is the worst kind of creative license because it suggests the very opposite of the truth, in this case, that the president was behind J. Edgar Hoover’s sending the ‘sex tape’ to Coretta King.”

Moyers refers, of course, to the notorious audio tape made by the FBI and sent to King in an effort to threaten him and, Hoover hoped, drive King from leadership of the civil rights movement. As Moyer says, “some of our most scrupulous historians have denounced” the charge that Johnson had anything to do with the tape. “And even if you want to think of Lyndon B. Johnson as vile enough to want to do that, he was way too smart to hand Hoover the means of blackmailing him,” Moyers said recently.

The film also overplays Johnson’s opposition to the Selma march. In fact, Johnson understood as well as King that very public displays of protest would be needed to create the right kind of political environment in Washington, D.C. to pass voting rights legislation in 1965, particularly in the wake of the historic passage of civil rights legislation just a few months earlier. When Johnson, along with the rest of the country, saw the brutality in Alabama he realized the political moment had arrived and went to Congress quickly to insist on action.

This scene amounts to the climax of the film and disappointingly much of the drama of those moments is lost on the screen. The staging is all wrong for anyone who knows the history. Johnson spoke in the packed chamber of the U.S. House of Representatives where everyone from the members of the Supreme Court to racist southern Democrats expected to hear an historic speech. They were not disappointed. Perhaps it was impossible to film this critical moment of the story where it actually took place, but for whatever reason Johnson’s speech in the film has little of the power it had at the time. It is reported that King, who was watching on television, wept – some of his followers said they had never seen that before – when Johnson adopted the slogan of the movement and vowed “we shall overcome.”

Additionally, Johnson was passionate and animated during that speech, not droll and understated as the usually excellent actor Tom Wilkinson plays the scene in Selma.

Still it is asking too much for one film, even a really fine one, to capture the full story of a tremendous turning point in American political history. If the film succeeds in further explaining and underscoring the role King and his devoted followers – men like Georgia Congressman John Lewis who was nearly killed during the march – played in advancing the cause of civil rights, then that is an artistic accomplishment to be praised and awarded by audiences and by Hollywood.

However, amid the quibbles over historical details and the nit-picks over interpretation it is up to the rest of us to appreciate – and try to recreate in our own time – the enduring political lessons of Selma and the civil rights era. As the historian Julian Zelizer has so ably documented in his terrific new book The Fierce Urgency of Now, many different and sometimes conflicting strands came together in 1964 and 1965 to move the nation and the cause of civil rights forward. King and other civil rights leaders bravely dramatized the racism and hatred afoot in the country and made the cause of civil rights a moral and religious issue. The tragedy of John Kennedy’s assassination gave the cause new power in the hands of a determined new president. Johnson’s stunning landslide win over Barry Goldwater in 1964 (Goldwater opposed the Civil Rights Act passed just before election) gave Johnson a great issue and both greater political and moral authority to create laws. Just as important, the 1964 election created a huge Democratic majority in Congress that LBJ mobilized as a master political strategist. Northern Republicans, particularly Senator Everett Dirksen of Illinois and Representative Charles Halleck of Indiana, embraced civil rights and worked across the partisan divide to pass vital legislation. And organized labor, many in the business community and Protestant, Catholic and Jewish congregations joined the fight at the grassroots. The world was watching and much of the country did come together at an historic moment.

Our history tells us that political and cultural change happens slowly; sometimes so slowly that painful and tragic events precede the needed change. Change almost always involves work from the bottom up and the top down. And change that bends that arc of history toward justice usually means people and politicians must abandon old ways and grow and change. Once he reached the White House, Lyndon Johnson ceased to become a southern politician trapped by the old ways and attitudes of his region. He grew. Dirksen, Halleck and other Republicans saw beyond narrow, conservative interpretations of what the federal government might do. They grew. One has the sense that Martin Luther King was growing, as well. By the time of his death King’s agenda was still centered on civil rights, but had expanded his moral leadership to oppose misguided U.S. foreign policy and embrace a fairer economic policy.

At its best the film and the history reminds us of the long, twilight struggle for racial equality that has been a fixture of the country since its very beginning and that the struggle goes on. It also reminds us of what brave and determined individuals can do to correct injustice as well as what is possible when the people and their politicians are courageous enough to change. There is also much to celebrate in the fact that such a film was made by a supremely gifted African-American woman.

Selma also reminds us that fifty years on the right to vote in the United States is still a controversial issue. A U.S. Supreme Court decision in 2013 gutted key parts of the Voting Rights Act’s “pre-clearance” provision that mandated that states with a history of voting rights abuses receive Justice Department approval before changing their laws. The Congress shows no sign of pushing back on that unfortunate decision.

As the Brennan Center for Justice at the NYU Law School recently reported: “Increased single-party control in state capitals has accompanied a renewed push for voting restrictions. There are strong pushes for strict photo ID requirements in some Republican-led states, including in places where laws were struck down by state courts. This year, the courts — including the U.S. Supreme Court — are again poised to rule on voter ID and other election laws. Courts failed to block a number of restrictive laws last year, and without clear limits, states appear ready to move forward with harsh new measures.”

The film, our history and our current condition remind us both of where we have been and where we still need to go. Go see Selma.

Alexander Hamilton was the nation’s first Treasury Secretary and not, as Groupon recently promoted, one of those old, dead white guys we celebrate on President’s Day. Hamilton, who died in a duel with Aaron Burr, would probably rather be remembered as the chief author of a number of the Federalists Papers, the brilliant essays on the powers of government that continue to serve as footnotes to the Constitution and as PR “white papers” that helped sell the founding document to the nation.

In Federalist 78, Hamilton, writing as Publius, discussed several issues related to the judicial branch of the government that had been created under Constitution, including how judges would be appointed and why it was essential to their impartiality and independence that they be guaranteed “life tenure.”

Hamilton was an elegant writer, if somewhat prone to the run-on sentence. Here’s a key (long) sentence from his famous discourse on judges and the judiciary. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

It would be understandable if you didn’t get all that in one reading, but Hamilton’s essential point was – I’ll put it in my words – that the judiciary ultimately stands as a guard against popular whims and government actions that run counter to the Constitution and individual liberties. The great Federalist admits – maybe hopes – that over time the people will be smart enough to figure out these “ill humors” and correct them, but in the short term, minus “more deliberate reflection” public men (and women) can and will make mistakes or, heaven forbid, stupid decisions.

The job of a judge – particularly a federal judge – is unique in our system and, as Alexander Hamilton and others argued, it must be unique in order for the delicate balance of competing interests among the three branches of government to work. Judges must have the opportunity to engage in “deliberate reflection” and the freedom to know that as long as they maintain certain ethical standard their jobs are not in jeopardy.

Not One of Us…

Idaho’s governor is a genial fellow. In the old days we might have referred to him, as in the old English phrase, as “a hail fellow well met.” I’ve heard Butch Otter quote Shakespeare and he’s been known to lace his speeches with references to the Founders, especially that champion of limited government Thomas Jefferson. Otter once courageously voted against his party and a Republican president when he argued that The Patriot Act, passed in the wake of the September 11 attacks, might well become a threat to civil liberties.

Ours is, as they say, a free country and sharply worded criticism from the lips of public officials is about as common as Groupon promotions, but the nature of Gov. Otter’s recent criticism of Idaho’s widely respected federal District Judge Lynn Winmill – Otter reported said the judge “isn’t one of us” – is just plain hard to figure. Otter went on to suggest that Winmill “doesn’t share all of the enthusiasm for the marketplace and freedom that we do in Idaho.”

The governor may be able to quote Jefferson, but he may find it useful to re-read some Hamilton.

Goodness knows federal judges are not – nor should they be – immune from serious criticism. Franklin Roosevelt once famously said after the U.S. Supreme Court had wiped out much New Deal legislation that the court was stuck “in the horse and buggy” era of judicial analysis. Dwight Eisenhower privately lamented the Brown v. Board of Education decision that struck down the decades of law that held that blacks and whites could gain the same quality of education in segregated schools that were “separate but equal.” Barack Obama dissed the current Supreme Court’s decision in the Citizens United case that opened the floodgates for corporate and labor money to wash into our politics. Criticism of judges is cheap and it is a free country.

What is interesting about the Idaho governor’s criticism is not that he made it, but that he has yet to offer any specifics that might illuminate both his criticism and how he thinks about the role of judges. After all, Otter regularly appoints state court judges. Some enterprising reporter needs to follow-up.

Meanwhile, as the Idaho Statesman’sDan Popkey has noted, Winmill’s capabilities as a person deserving of life tenure was rather exhaustively vetted when he was nominated by President Bill Clinton 19 years ago. Then-Sen. Larry Craig took pains to explain to the Senate Judiciary Committee how diligent he and then-Sen. Dirk Kempthorne had been in assessing Winmill for a job on the federal bench. Craig said they had consulted widely with bipartisan members of the bar and retired judges and determined that Winmill “was extremely well qualified.” Needless to say, the two Republican senators didn’t rely for their analysis on the opinions of the Bannock County Democratic Central Committee, a group that also would have been high on Winmill.

When Kempthorne had his chance before the committee nearly two decades ago he quoted the Old Testament to the effect that “justice, and only justice” must be the pursuit of a judge and that Winmill “meets this test.”

Judge Winmill, who I have known since his early days in Bannock County politics, hardly needs any defense from me, but if you wonder, as I do, about the governor’s recent comments about the federal judge ask any lawyer you know for his or her take. I predict you’ll get an earful.

The Mind of a Judge

Years ago U.S. Supreme Court Justice Benjamin Cardozo, considered by most historians of the court as one of the greatest justices in the nation’s history, was asked who among his Supreme Court colleagues he considered to be the greatest living American jurist. Cardozo said, “the greatest living American jurist isn’t on the Supreme Court.” The greatest judge, Cardozo maintained, and he may well have been correct, was the hugely respected U.S. Appeals Court Judge Learned Hand of New York. Hand, who died in 1961, served on the federal bench for 52 years and was still deciding cases when he died. He is still regarded as the best judge to never make it to the Supreme Court.

Until 1944 Judge Hand was largely unknown outside of legal circles. Then he made a speech at a huge ceremony where thousands of immigrants became U.S. citizens. The speech both captured public imagination and served to articulate Hand’s own mind as a judge. He titled the speech “The Spirit of Liberty.”

“What then is the spirit of liberty? I cannot define it; I can only tell you my own faith,” Hand said. “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”

I was reminded of Judge Hand’s short and remarkable speech a few years back when I was in the audience when Judge Winmill, a man remarkably well-read in history as well as the law, called upon a detailed discussion of the infamous Dreyfus Affair – the scandalous anti-Semitic trial of a French military officer in the 1890’s – to illustrate a talk about the American system of justice. I have also heard the judge talk about the lessons of the now widely acknowledge miscarriage of justice that lead to the unconstitutional internment of Japanese-Americans during World War II and to the qualities required of a patriot.

I admit to bias about such things, but I like my life tenured judges to know about, think about and reflect on the kinds of ideas that judges like Learned Hand and Lynn Winmill did and do.

In Federalist 78 Alexander Hamilton made the case for life tenure for federal judges in order to insulate those judges from the pressures and partisanship of daily politics under our system. It’s not a perfect system, of course, politics and partisanship still leak in from time-to-time, but it is a system that has and still serves the nation pretty well. Hamilton recognized something else when he was writing in 1788 – that being a judge requires special skills not always widely available in society.

“Hence it is,” Hamilton said, “that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”

Integrity and knowledge then, when everything is said and done, is what we really must demand from a judge. Decisions and rulings, along with ill-defined criticism from politicians will come and go. Integrity and knowledge were the qualifications for the Founders and that should still be good enough for us.

A hamburger, a walk in the desert and a baseball game. Pretty mundane stuff for most of us, but not if you have spent the last 42 years in prison, as Louis Taylor has, for a crime he says he never committed.

Louis Taylor was 16 years old in 1970 when a downtown Tucson landmark, The Hotel Pioneer, caught fire just before Christmas. The old hotel was packed with out-of-town Christmas shoppers, many from Mexico, and with folks attending a party for Hughes Aircraft employees. Young Taylor was at the hotel, too, he said to cage a little food and maybe pick up a drink or two. As the fire raged through the multi-story hotel Louis, at the direction of a first responder, went door-to-door alerting people to the blaze. Some fire fighters later said they considered him a hero for helping get hotel guests out of the burning building, while tragically others died of carbon monoxide poisoning or from leaping to their deaths.

Later than night, after extensive questioning by police without a lawyer or other adults present, Louis Taylor was arrested and charged with the arson deaths of 28 victims – another person died later of injuries. Taylor’s story to police, it must be noted, was inconsistent and confused, but the police and arson investigation was, as well. No recording was made of the police interview and if officers made notes of the interview with the teenage Taylor those records never surfaced. An all-white jury convicted the young African-American boy and he was sentenced to consecutive life sentences for 28 arson related murders.

The collective work of the volunteer lawyers and the pushy journalists eventually succeeding in raising enough doubt about whether the Pioneer Hotel fire really was a case of arson that the Pima County, Arizona prosecutor Barbara LaWall finally agreed to petition the court, not for a new trial for Taylor, but for a convoluted and fundamentally unsettling deal whereby Taylor agreed to plead “no contest” to the 28 murders in exchange for his release for time served – 42 years. He also gave up all rights to seek compensation or to be considered not guilty in the eyes of the law.

Taylor is a free man this week and he spent his first hours of freedom visiting an In-and-Out Burger, taking a walk in beautiful Sabino Canyon in Tucson and watching the Arizona Diamondbacks play baseball in Phoenix. He says he’ll start over and devote his life to doing good works.

I’ve followed this case since ’60 Minutes’ broadcast its first story in 2002 and, while Taylor’s long story can properly be characterized as some sort of delayed justice, it is also a supreme example of how the American justices system, with its delicate balance of protections for society and the accused, can be twisted and abused. Any fair reading of the facts of the Taylor case makes it clear that evidence that may have been exculpatory was never presented to the defense or the jury. The Arizona Justice Project’s deposition of one of the original fire investigators – a portion is included in Steve Kroft’s piece – is shocking. The investigator calmly concludes, without a hint of evidence, that the hotel fire had to have been set by a “negro” who must have been about 18. Five other independent fire investigators sifted the evidence from 1970 and concluded that the fire was of “undetermined” origin. As another Taylor lawyer says – no arson, no crime. Even the judge in the Taylor trial now admits he wouldn’t have voted to convict the young man.

And there is, of course, the reality of what was at least a six hour police interrogation of a young man of color who was questioned without the benefit of counsel. Put yourself in those shoes.

After noting that the investigators who determined in 1970 that the Pioneer fire was arson stand by that judgment all these years later, the Pima County prosecutor made the obvious admission that a new trial for Taylor, based on modern standards of arson investigation, would likely not result in another conviction. Still, hanging on a thin procedural thread, the prosecutor would only agree to the convoluted plea bargain that, while not exonerating Taylor at least set him free.

“The legal question presented to the court today is whether a review of the original evidence using new advances and techniques in fire investigation is legally ‘newly discovered evidence.’ Although this question hasn’t been addressed in Arizona, and it appears no Arizona court has ruled on the legal question of new arson techniques being ‘newly discovered evidence,’ at least one jurisdiction has determined that such advances in fire investigation techniques would constitute ‘newly discovered evidence.’ If that were the result in the instant case, the state of the evidence is such that the State would be unable to proceed with a retrial, and the convictions would not stand.”

So, why not just admit, given all the “new evidence” that Taylor’s conviction did not meet the threshold test of “beyond a reasonable doubt?” Good question for a prosecutor who told the court that the deal she insisted upon will “maintain the integrity of the defendant’s conviction.” LaWall, by the way, won re-election last fall with 97% of the vote against a write-in candidate.

As for Louis Taylor, as CBS reported, he “faced a choice as new doubts emerged about his conviction: He could continue his fight, maybe for years more, to clear his name and potentially sue for a big settlement. Or he could enter a plea and get out of prison now, giving up any opportunity to file a lawsuit against the state.”

“You can’t make up for 42 years. You just gotta move forward,” Taylor said and then he went to a ball game.

There are no doubt many lessons from Louis Taylor’s case, but the first and last lesson is this: the justice system we have, as good as it is, is never perfect. Mistakes are made because people are human and bias and racism and assumptions creep into to conclusions that become facts. It is equally true that future mistakes can only be avoided when good people, charged by us to do this essential and delicate work, admit when a mistake has been made. If you can’t be sure “beyond a reasonable doubt” then you can’t be sure at all.

Chief Justice John Roberts cousin will be sitting in a seat reserved for family members when the United States Supreme Court hears arguments on the California same sex marriage case tomorrow. Jean Podrasky is 48, a resident of San Francisco and has been in a committed relationship for four years. She hopes to get married. It may well take the vote of her cousin, the Chief Justice, to allow Jean to marry her partner Grace Fasano because Ms. Podrasky is lesbian.

As to whether her being gay might impact cousin John’s reading of the complicated California ban on same sex marriage, Podrasky told the Los Angeles Times that she couldn’t predict, but then added the inevitable, “Everybody knows somebody” who is gay, “It probably impacts everybody.” Indeed.

As Frank Bruni wrote recently in the New York Times, more and more Americans have come to the conclusion that finally granting full civil rights to gay Americans is not a zero sum game. One side need not lose, while the other wins. “The legalization of same-sex marriage takes nothing from anyone,” Bruni wrote, “other than the illusion, which is all it is and ever was, that healthy, nurturing relationships are reserved for people of opposite sexes.”

All this is not to say that the Supreme Court’s action on the cases at issue this week doesn’t matter. It does. But even if the Court delays the inevitable for a while longer the politics, at least in most places, has moved on. How else to explain politicians from Barack Obama and Hillary Clinton on the left to Sen. Rob Portman on the right publicly charting the evolution of the issue. The Portman case is one of the most interesting and also most human. The conservative Ohio Republican, a man vetted by Mitt Romney for the vice presidency, came to his new position on same sex marriage after his college age son acknowledged his own sexual orientation. Portman, in the language of politics, came to possess “new information” about just how a contentious issue can work in real life. His comments about his son and wanting to support him is the language of any father who loves his kid and wants to see him happy.

Portman has said that he told the Romney campaign the full story about his son during the vice presidential vetting and he thinks the issue was not decisive in his not being picked. Well, there are no coincidences in politics, so take Portman at his word or be more cynical – and realistic – and imagine how that issue might have played with the GOP base last fall. Portman is already being threatened with a primary challenge in Ohio from the same crowd that once fought to the last lunch counter against civil rights in another era.

The sooner Republicans follow the darling of the neo-cons Dick Cheney and get on the right side of politics and history on this issue the sooner the grand old party can find its way back to national presidential relevance. Democrats who still worry about changing their views on gay marriage should listen to Missouri Sen. Claire McCaskill, a skillful politician in a conservative state, who has acknowledge the inevitable. “I have come to the conclusion that our government should not limit the right to marry based on who you love,” McCaskill said over the weekend.

Still one has to wonder whether a state like Idaho where the legislature can’t bring itself to even hold a hearing on legislation to add the words “sexual orientation” and “gender equality” to the state’s human rights law will again be pulled kicking and screaming into another new era of civil rights protection. Idaho was among the last to adopt Dr. Martin Luther King, Jr’s. birthday as a state holiday and only did so after pressure from human rights activists and threats of boycotts in other states made such a small and symbolic move inevitable and necessary.

There is rich irony in the fact that ultra-conservative Idaho now finds itself more or less in the same boat on gay marriage as Socialist France, where public opposition to same sex-marriage and adoption legislation is encountering fierce resistance from the political and religious right. Holdouts make strange bedfellows. Even the new Pope, while serving as the Archbishop of Buenos Aires, a Catholic country where same sex marriage is legal, is reported to have quietly favored civil unions for gay Argentines as an alternative to full civil rights.

Leave it to a young American to put it all in perspective. Yale undergrad Will Portman has written eloquently in the school’s newspaper about his own struggles with his sexual identity and the possible impacts on his dad the Senator. Here’s part of what he said: “I support marriage for same-sex couples because I believe that everybody should be treated the same way and have the same shot at happiness. Over the course of our country’s history the full rights of citizenship have gradually been extended to a broader and broader group of people, something that’s made our society stronger, not weaker. Gay rights may be the civil rights cause of the moment, but the movement fits into a larger historical narrative.

“I’m proud of my dad, not necessarily because of where he is now on marriage equality (although I’m pretty psyched about that), but because he’s been thoughtful and open-minded in how he’s approached the issue, and because he’s shown that he’s willing to take a political risk in order to take a principled stand. He was a good man before he changed his position, and he’s a good man now, just as there are good people on either side of this issue today.”

I still recall with pride those Idaho state legislators who had the courage to take a political risk to support tough human rights legislation back in the 1980’s when the state’s reputation as a haven for white supremacists presented a genuine threat to Idaho’s reputation. With the perfect vision that comes with hindsight it’s now clear those decisions (and votes) were no-brainers. Some day, perhaps even sooner than many think, votes on granting full civil and human rights to gay Americans will be viewed in the same way. Makes you wonder how long some folks will cling to the “illusion” that people who love and care for each other and happen to be gay don’t deserve the same rights and responsibilities as the rest of us. Here’s hoping Idaho isn’t again among the last to take a step that is both inevitable and morally correct. Being a hold out with, of all people the French, many be really uncomfortable.

One Impressive Guy

Bill Neukom, now the managing general partner and CEO of my beloved San Francisco Giants, seems like one of those guys who has led ten great lives while the rest of us struggle to manage just one.

Perhaps best known as the most famous in-house lawyer in American business, Neukom started working at Microsoft when the software giant had a dozen employees. He stayed for 25 years and, as he modestly told a recent gathering of lawyers in Sun Valley, Idaho where he has a home, his bushel basket was positioned properly under the Microsoft tree as the stock options just kept falling. He made a bundle and is now reinvesting it in some handsome and useful ways.

Obviously, he bought into the Giants ownershipand has had an influential hand in strengthening the front office and building a scrappy team, including many cast offs, that won a World Series last year. But, that is hardly the sum of what Neukom has been spending his money on.

WJP is dedicated to leading “a global, multidisciplinary effort to strengthen the rule of law for the development of communities of opportunity and equity.” A noble sounding mission that basically boils down to this: most of the rest of the world does not embrace nor have the tradition of a justice system that is based on well-defined rules, established and transparent practices and real accountability.

Neukom, who conceived of and founded the World Justice Project while he was president of the American Bar Association (another of his many lives), simply says without adherence to what lawyers call “the rule of law” people and institutions in the developing world will never have the opportunity and equality that all of us deserve.

The World Justice Project has developed a Rule of Law Index that evaluates countries around the world and the degree to which they respect the rule of law. For example, the Philippines ranked poorly, while Singapore ranked very high. Many of the lowest marks, perhaps not surprisingly, go to countries in sub-Saharan Africa.

In addition to establishing an objective database on the level of adherence to the rule of law, the Index has generated substantial international media interest like this line from the Jordan Times: “The index ranked Jordan 15th for clear, publicized and stable laws, essential for security and investment. However, in terms of promoting greater transparency, there is room for improvement.”

Neukom and his associates have importantly cast a very bright light on a fundamental human right that most Americans (too easily perhaps) simply take for granted. The U.S. justice system, don’t get me wrong, is far from perfect, but the western notion of how courts and judges, legislatures and the media should operate, is still a model for much of the rest of the world.

Thanks to Bill Neukom, serious work is underway to move the needle on this fundamentally important issue.

When I had the opportunity to hear Neukom speak recently, I was struck by his passion for the organization he has created, but also by one personal thing he said. The money he made at Microsoft, he said, “isn’t my money.” He meant, I think, that he felt a motivation greater than many of us do to give something back. He’s living proof that you can do well and do good.

Neukom is nearly as passionate about the ball club. He’s hands on, extraordinarily knowledgeable and, after last year’s surprising World Series win, willing to concede that magic must always be laced with hard work in order to win it all. He calls himself a “lucky guy.”

“How would I describe the guy that can fire me?” former Giant player and broadcast Duane Kuiper told the San Francisco Chronicleon opening day in April. “Let’s see, one of the nicest guys I’ve ever met, very handsome, one of the most intelligent guys I’ve ever known. You see where this is going.”

Yup. However, in the case of Bill Neukom, super lawyer, philanthropist, baseball guy, rule of law advocate, it’s also all true.

Tucson…Two Months

On This city in the Sonoran Desert has been our adopted “second city” now for more than ten years. We have come to love the place, particularly this time of year.

The near arrival of spring brings a huge variety of life to the desert. The birds start talking at first light, the cool mornings give way to progressively warmer days until, as the incredible pink sunsets appear in the darkening, brilliant blue sky, the desert night cools again and one of the greatest star shows anywhere helps remind us how insignificant we are in the grand scheme.

The third annual Tucson Festival of Books has been dominating the city this weekend, particularly the campus of the University of Arizona. Thousands flocked to the campus yesterday to wander among booths, listen to music and celebrate books with a long list of good writers.

I listened to writer Jonathan Eig talk about his latest book on the Chicago mobster Al Capone. As a baseball fan, I’ve admired and enjoyed Eig’s books on Jackie Robinson and Lou Gehrig. He had a big crowd in a big tent laughing yesterday as he disposed of a few myths about Big Al. Capone didn’t order the St. Valentine’s Day massacre, for instance, and Eliot Ness had almost nothing to do with bringing Capone to justice. More plausibly, Capone got crosswise with a smart U.S. Attorney.

Simon seemed momentarily taken aback when a questioneer thanked him for his sensitive and knowing reporting in the aftermath of the shooting of Rep. Gabrielle Giffords and so many others on January 8. The big crowd in the UA Student Union applauded the remark and the conversation returned to the nature of the misunderstood story playing out daily in the borderlands.

Still, a little over two months on from the shootings, the healing here comes slowly and one gets the impression that a whole city is still processing, reflecting, mourning and trying to move ahead.

The big book festival this weekend made me reflect anew on the power of stories in the hands of gifted storytellers to help us make sense of an often senseless world. Artists simply help us live and cope.

Luis Urrea, a great and gifted writer who straddles at least two cultures, gave me a new mantra while he was talking with Scott Simon. Urrea says he tells his writing students that every day is Christmas or their birthday, they just need to be open to the gifts – mostly little tiny gifts – that come their way every day.

Tucson is finding its way two months on by finding and enjoying the little gifts that come its way every day.